Error to Admit Hearsay Over Foreclosure Attorney Objections!
At the end of the day, whether a homeowner is permitted to stay in their home or whether they are thrown into a street…often by a plaintiff who is several times removed from the actual party whose name is on the paper…comes down to what happens at trial….does the homeowner’s foreclosure attorney or foreclosure lawyer know how to properly assert the rules of evidence?
One of the most frustrating things we experience on a regular basis is the utter lack of enforcement of basic rules of evidence. The rules of evidence exist to protect all parties and to ensure the integrity of the judicial process as a whole. But what’s occurring across the board in foreclosure cases is a lack of enforcement of those rules. Documents that may or may not exist are simply created.
Often this not immediately apparent. But sometimes it’s quite direct….such is the case when a default letter contains the phrase at the top…
REPRESENTATION OF PRINTED DOCUMENT
which might as well just read
DOCUMENT CREATED FOR LITIGATION
What of course is so incredible is this occurs on such a widespread basis….but I mean at least in those cases they are alerting the court to the fact that….
THIS PIECE OF EVIDENCE WE NEED HAS BEEN CREATED FOR LITIGATION!
What’s worse is when those same letters do not have that big screaming warning sign…..like when they just cut and paste logos and text into letters that do not at all exist in the format in which they are presented. But over and again the objections are overruled and the created evidence is entered.
Well, when the first opinion in Holt was released, the trial court was largely affirmed. But on rehearing, a completely different outcome was produced….this time, the court dismissed. Which reminds me of this:
Since the bank in this case did not provide information sufficient to satisfy the business records exception, the trial court erred by admitting the payment history into evidence. Without sufficient evidence to determine the amount due under the note and mortgage, the trial court erred in entering a foreclosure judgment in favor of the bank. If this was the only error, we would reverse and remand for the trial court to take further evidence
The bank responded that there were at least two affidavits in the court file stating that it complied with paragraph twenty-two. However, the record shows that the affidavits were not admitted as evidence at the time the bank rested its case-in-chief. Holt objected to the affidavits being considered, and argued that, even if the trial court took judicial notice of the court file containing the affidavits stating that paragraph twenty-two was complied with, the court could not take judicial notice of the fact that the notice was mailed. The trial court implicitly overruled the objection and denied the motion to dismiss by granting the judgment. Holt argues that the trial court judge erred in admitting the payment history over her objection and in denying her motion to dismiss. We agree.